concurring in part and dissenting in part.
While I agree with much of Judge Rubin’s opinion, I write separately to state my views regarding three issues.
First, I dissent from the majority’s treatment of the “front pay” issue. In deciding not to grant reinstatement to the plaintiff, the trial court noted “the substantial reductions in force and changed conditions at the defendant’s plant due to a continued reduced demand for its products, with the prospects for further reductions in force making it possible that the plaintiff would be lawfully terminated before his mandatory retirement date.” The court nevertheless awarded the plaintiff $88,800 in prospective damages, the amount based upon calculations by plaintiff’s expert on the assumption that plaintiff would not have been laid off, but would have continued to work full time based on a normal work-life expectancy. In essence, the court denied reinstatement because of the likelihood of layoff but ignored that likelihood in making what I consider to be a speculative front pay award. This does not, in my view, constitute the sound exercise of discretion discerned by the majority. The ADEA was not intended to insulate workers from the problems of a struggling company in a difficult and uncertain economy and the probability of layoffs or even plant closing.
Plaintiff’s chief witness on damages, Geraghty, could only describe the actions of defendant as appearing to him to be “unconscious bias” and not “by any stretch of the imagination ... a policy of overall age discrimination____ [A] mistake [was] made in this case.” At best, in my view, appellee should have been ordered reinstated to his former position and paid his back-pay damage award of $22,200 only. Appellee prayed in his amended complaint and requested at trial that the court require the defendant to reinstate him “with full employment rights and benefits” and “award his lost wages through the date of his reemployment.” 1 That is all that plaintiff should have received in the event of a favorable judgment. See Blackwell v. Sun Elec. Corp., 696 F.2d 1176 (6th Cir.1983). Initially, the trial judge, in my view, reacted properly in stating that “any claim for damages would be limited to damages that have accrued to the date of tria.” The trial court was well aware that plaintiff had already secured other employment and the relief so indicated would render Davis whole.
Second, I dissent from the court’s conclusion that the jury was properly charged regarding what constitutes a willful violation of the Act. After analyzing the willfulness standards under the ADEA employed in other circuits, Judge Pell of the Seventh Circuit articulated an appropriate standard and sound reasons in support:
Congress, in our opinion, intended that liability under the ADEA could be established without any showing as to the *925defendant’s state of mind. It is equally clear that, by allowing liquidated damages only for a “wilful” violation, 29 U.S.C. § 626(b) (1976), Congress did not intend the doubling of damages to be automatic. Those courts which have found willfulness to exist on a showing of recklessness have answered the argument that their standard leads to such an automatic doubling by pointing out that this is not the case when the plaintiff relies on statistical evidence to establish his prima facie case.
One could readily conclude from this reasoning that liquidated damages will always be available to a plaintiff who establishes liability under the ADEA on a discriminatory intent rather than a discriminatory impact theory. We find nothing in 29 U.S.C. § 626(b) (1976), or in the legislative history of the ADEA, to support such a result.
In fact, the legislative history of the ADEA suggests that the Congressional framers thought that non-willful discrimination directed towards an individual was quite possible. Unlike race discrimination, age discrimination may simply arise from an unconscious application of stereotyped notions of ability rather than from a deliberate desire to remove older-employees from the workforce:
Age discrimination is not the same as the insidious discrimination based on race or creed prejudices and bigotry. Those discriminations result in non-employment because of feelings about a person entirely unrelated to his ability to do a job. This is hardly a problem for the older jobseeker. Discrimination arises for him because of assumptions that are made about the effects of age on performance. As a general rule, ability is ageless.
113 Cong.Rev. 34,742 (1976) (remarks of Rep. Burke).
The standard for willfulness therefore should focus on the defendant’s state of mind at the time the allegedly discriminatory acts occurred. It must distinguish those situations in which an employer consciously discriminates against an employee because of age from those in which the discrimination is unconscious. This distinction is just as necessary in disparate treatment cases as it is when the plaintiff sues on a discriminatory impact theory. We think that a finding of willfulness should lie only if there is some showing as to the defendant’s knowledge of the illegality of his actions. We hold that, in order to prove willfulness under 29 U.S.C. § 626(b) (1976), a plaintiff must show that the defendant’s actions were knowing and voluntary and that he knew or reasonably should have known that those actions violated the ADEA.
Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 154-56 (7th Cir.1981) (citations & footnotes omitted). Footnote 10 in Syvock reads:
The aspect of this test for willfulness that requires a showing that the employer knew or reasonably should have known that his actions were violative of the ADEA does not put an insurmountable burden on the ADEA plaintiff. The criterion implies that the plaintiff must show two things: (1) that the employer knew or reasonably should have known what the requirements of the ADEA are; and (2) that the employer knew or reasonably should have known that his actions towards the plaintiff were inconsistent with those requirements.
We concur with the reasoning of the Ninth Circuit in Kelly v. American Standard, Inc., 640 F.2d 974, 980 (9th Cir.1981), that the appropriate standard cannot create an incentive for the employer to remain ignorant of the law. 29 U.S.C. § 627 (1976) requires employers to post notices required by the Secretary of Labor, Pursuant to statutory authority, the Secretary has promulgated a regulation requiring employers to post notices in conspicuous places on premises advising employees about the application of the Act, 29 C.F.R. § 850.10 (1980). The plaintiff’s burden of showing that the employer knew or reasonably should *926have known what the law required should therefore be easily met.
The determination whether the employer knew or reasonably should have known that his actions toward the plaintiff were inconsistent with the law is a determination left to the jury in the first instance. The showing must clearly be greater than that necessary for the initial finding of ADEA liability. The showing must be sufficient to indicate that the defendant’s discrimination was not unconscious. In a disparate treatment case, a finding of willfulness will generally require some direct evidence of discriminatory intent toward the plaintiff or a showing that, at the time of the alleged discriminatory action, the employer was motivated to discriminate or engaged in a pattern of discriminating against older employees.
Id. at 156 n.10 (emphasis added). This court, indeed, specifically approved the language from Syvock emphasized in the above quotation and added that “instructions to the jury should focus on whether the employer deliberately, intentionally and knomngly discharged the employee because of his age.” Blackwell v. Sun Elec. Corp., 696 F.2d at 1184 (emphasis added).
Judge Wilson’s charge dealing with the willfulness standard here was as follows:
You are instructed in this regard that an act is done willfully if it is done knowingly and done intentionally, and in violation of the Act. Willfulness would exist if the employer Combustion knew that it was subject to the Federal Age Discrimination in Employment Act and voluntarily proceeded in the face of that knowledge to engage in conduct which it knew might violate the Act. Willfulness need not involve a bad purpose or evil motive on the part of en [sic] employer. You are instructed in this regard that an act is done willfully if it is done knowingly, done intentionally, and that is done, as I say, in violation of the Act. Tr. at 455-56 (emphasis added). In a disparate treatment case such as this one, not based on statistical evidence of any plan or general practice of age discrimination, the instruction was confusing in indicating that if defendant knew it was subject to the Act and voluntarily engaged in conduct which “might violate” the law, it should be held liable.
Third, while I believe that error was committed regarding Geraghty’s testimony, I concur with the majority in its handling of this issue because the error was harmless. I write separately simply to stress that Geraghty should not have been permitted to testify that certain actions of the defendant constituted “unlawful” age discrimination. As set out in the notes of the advisory committee to Fed. R. Evid. 704, opinions “which would merely tell the jury what result to reach” should be excluded. Such opinions, “phrased in terms of inadequately explored legal criteria,” are inadmissible. The question asked this witness was like the example condemned in the notes: “Did T have capacity to make a will?” Professor Geraghty was asked whether appellant’s actions were “lawful.” Fed. R. Evid. 704, while dispensing with the rule against opinions on “ultimate issues,” is not “intended to allow a witness to give legal conclusions. United States v. Fogg, 652 F.2d 551, 557 (5th Cir.1981), cert. denied, 456 U.S. 905, [102 S.Ct. 1751, 72 L.Ed.2d 162] (1982).” Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir.1983). “[C]ourts must remain vigilant against the admission of legal conclusions.” United States v. Milton, 555 F.2d 1198, 1203 (5th Cir.1977); see also Marx & Co. v. Diners’ Club, Inc., 550 F.2d 505, 508-512 (2d Cir.), cert. denied, 434 U.S. 861, 98 S.Ct. 188, 54 L.Ed.2d 134 (1977).
In sum, I would be prepared to concur in a judgment of reinstatement and a limited damage award despite what I consider to be a confusing instruction and improper expert testimony. I agree with the handling of the attorney fee issue. I dissent, however, as to the damage award here approved under the circumstances of this case.
. The whole import of the discrimination in employment laws, whether ADEA or Title VII, is that "persons aggrieved by the ... effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination." Firefighters Local Union No. 1784 v. Stotts, — U.S. —, n. 15, 104 S.Ct. 2576, 2590 n. 15, 81 L.Ed.2d 483 n. 15 (1984) (emphasis added).